The tender process was assessed to determine the intention of the evaluation methodology, in the light of the expenditure of public funds.

The decisions taken by Air Services Australia (CAA) were reviewed for compliance, consistency and fairness.

Expert analysis was provided to the Federal Court in support of the claim of unfairness in the conduct of the procurement.

A forensic audit was conducted of selected procurement materials to define and provide an opinion on the decision-trial and the defensibility of decisions.

OUR SOLUTION AND THE OUTCOME

Specialist PSI advisers reviewed the evaluation methodology of the procurement, and the intention of the supporting documentation.

A report was provided to the complainant, the findings of which contributed to the evidence provided to the Federal Court.

Actions in the tender process by Air Services Australia were considered to create a preliminary and binding contract.

Certain unwritten terms were implied in the contract, in that CAA had an obligation to deal fairly with all tenderers, and to conduct the tender evaluation fairly.

CAA breached the contract in Hughes in that it failed to evaluate the tenders in accordance with the evaluation criteria it had set out in its documentation; and breached confidentiality provision.

As a result of CAA's conduct, Hughes claimed to have suffered loss and damage set out in the RFT. www.ags.gov.au/publications/agspubs/legalpubs/legalbriefings/br33.htm

LEGACY VALUE OF PSI

Complicated tenders require consideration of the establishment of contractual obligations.

Tenderers must be treated fairly from the outset of the procurement process. Procurers must adhere to proper procedures, conduct evaluations in accordance with the evaluation criteria, and conduct tender-type process with care and thoroughness.

Even when there is no written contract, formal notice of acceptance, nor award of the tender, a preliminary contract can be created if certain representations regarding the award of a tender have been made to the tenderer, or the tenderer has been encouraged to partly perform the contract in anticipation of its award.

Court found that during the tender process, the CAA had contravened section 52 (s.52) of the Trade Practices Act 1974, by engaging in conduct that was misleading and deceptive.